Opinion
No. 3-17-0047WC
05-07-2018
KENNETH WELLER, Plaintiff-Appellant, v. THE ILLINOIS WORKERS' COMPENSATION COMMISSION, (G & D Integrated, Appellee).
NOTICE: This order was filed under Supreme Court Rule 23 and may not be cited as precedent by any party except in the limited circumstances allowed under Rule 23(e)(1). Appeal from the Circuit Court of Tazewell County. No. 16-MR-149 Honorable Michael Risinger, Judge, Presiding. JUSTICE HUDSON delivered the judgment of the court.
Presiding Justice Holdridge and Justices Hoffman, Harris, and Barberis concurred in the judgment.
ORDER
¶ 1 Held: Commission's decision to reduce award of temporary total disability benefits from 232-5/7 weeks to 2-1/7 weeks was not against the manifest weight of the evidence.
¶ 2 I. INTRODUCTION
¶ 3 Claimant, Kenneth Weller, sought benefits pursuant to the Workers' Compensation Act (Act) (820 ILCS 305/1 et seq. (West 2010)) for an injury he allegedly sustained to his neck and shoulder on September 30, 2011, while working for respondent, G & D Integrated. Following a hearing, the arbitrator found that claimant's injury arose out of and in the course of his employment with respondent and that his condition of ill-being was causally related to the injury. The arbitrator awarded claimant medical expenses, prospective medical treatment, and 232-5/7 weeks of temporary total disability (TTD) benefits. The Illinois Workers' Compensation Commission (Commission) reduced the award of TTD benefits to 2-1/7 weeks, but otherwise affirmed and adopted the decision of the arbitrator and remanded the matter for further proceedings pursuant to Thomas v. Industrial Comm'n, 78 Ill. 2d 327 (1980). On judicial review, the circuit court of Tazewell County confirmed the decision of the Commission. Claimant now appeals to this court, arguing that the Commission's reduction of TTD benefits was against the manifest weight of the evidence. We disagree and affirm.
¶ 4 II. BACKGROUND
¶ 5 On October 19, 2011, claimant filed an application for adjustment of claim seeking workers' compensation benefits for an injury he allegedly suffered to his neck and shoulder on September 30, 2011, while working for respondent. The matter proceeded to an arbitration hearing on April 14, 2015, at which the following evidence was presented. ¶ 6 Claimant was employed by respondent as a material handler. Claimant's duties included operating a forklift. Claimant testified that on September 30, 2011, he was backing up a forklift with both hands on the steering wheel. As claimant turned his head to look behind him, something in his neck "snapped" or "popped." Claimant then felt a sharp pain down his shoulder and into his elbow and hand. Claimant denied having similar symptoms prior to September 30. Claimant informed his supervisor what had happened before finishing his shift. ¶ 7 The following day claimant went to the emergency room. Claimant reported posterior neck pain radiating to the left shoulder with an onset the previous day after he felt a "pop" in his shoulder while driving a forklift. Claimant denied any numbness, weakness, or other radiation of the pain. An X ray of the cervical spine showed degenerative changes. Claimant was prescribed pain medication and instructed to follow up with his primary-care physician, Dr. Henry Gross. ¶ 8 On October 5, 2011, Dr. Gross examined claimant. At that time, claimant told Dr. Gross that while at work on September 30, 2011, he twisted his neck and felt a "pop." Claimant complained of stiffness and posterior neck pain with pain and tingling into his left shoulder and arm. Dr. Gross diagnosed work-related cervical radiculopathy and left shoulder pain. Dr. Gross prescribed pain medication and neck exercises. Although Dr. Gross's October 5, 2011, office note does not reference claimant's work status, claimant testified that Dr. Gross authorized him off work continuously from the date of his visit through the date of the arbitration hearing. ¶ 9 Claimant followed up with Dr. Gross on October 12, 2011, complaining of tingling from the middle of his shoulder blades down his left arm. Claimant reported these symptoms began on October 8, 2011. Claimant believed that his problems were due to overwork from climbing into and out of a forklift. Claimant stated that due to severe pain, he stopped working on October 4, 2011. Claimant also stated that his employer wanted him to return to light duty, but claimant felt that he was unable to do any work. Dr. Gross's diagnoses were unchanged from the previous examination. Dr. Gross recommended an MRI of the cervical spine and instructed claimant to return to his office in one week. In addition, Dr. Gross issued a work slip providing that claimant had been absent from work due to injury from October 4, 2011, until present, that he "may not yet return to work," and that he should remain out of work "until 1 week." ¶ 10 The MRI, which was performed on October 17, 2011, showed a prominent left lateral foraminal disc protrusion at C5-C6 producing severe encroachment upon the left C6 foramen and an extruded fragment producing severe encroachment upon the left C7 foramen. When claimant saw Dr. Gross on October 19, 2011, he reviewed the results of the MRI with claimant. At that appointment, claimant reported left shoulder and arm pain as well as complaints of neck pain. Dr. Gross's notes reflect that claimant's neck pain was "a new problem" which "started more than 2 weeks ago" with a "sudden" onset. Dr. Gross referred claimant to a neurosurgeon and instructed him to follow up again in two weeks. Respondent's workers' compensation carrier, however, denied Dr. Gross's recommendation for a neurosurgical evaluation. Thereafter, claimant continued to treat conservatively with Dr. Gross through March 18, 2015, and he continued claimant off work. Claimant testified that respondent eventually terminated his employment. The date and reason for the termination are not contained in the record. ¶ 11 Meanwhile, at respondent's request, claimant was seen by Dr. Mark Levin, a board-certified orthopedic surgeon, for an independent medical examination (IME) on January 3, 2012. Dr. Levin prepared a report of his findings and testified by evidence deposition taken on May 25, 2012. Claimant told Dr. Levin that on September 30, 2011, he was very busy and he had to cover three departments at work. Claimant's duties required him to drive a forklift and get on and off the vehicle. Claimant related that he developed a "sting" in the upper left shoulder and in the back of his head and neck. Claimant took some ibuprofen and went to the emergency room the following day. Claimant underwent an X ray at the hospital and was taken off work. Subsequently, claimant followed up with Dr. Gross, who ordered an MRI. Dr. Levin reviewed an X ray of the cervical spine taken in September 2008 and the one taken in October 2011. Dr. Levin testified that the latter X ray showed cervical arthritic and spondylolytic changes which were also present on the 2008 film. The October 2011 MRI was consistent with the X rays, showing multi-level cervical spondylosis and degenerative changes. The MRI also showed a disc osteophyte formation at C5-C6 and a left-sided disc herniation with extruded fragments at C6-C7. Dr. Levin opined that the disc herniation was chronic and not acute. Ultimately, Dr. Levin concluded that claimant's symptoms were consistent with degenerative cervical spondylosis and radiculopathy secondary to chronic degenerative arthritis and chronic disc pathology. Dr. Levin found no evidence that claimant's condition was caused or aggravated by his work activities. He further opined that there was no evidence that "the activities [claimant] described of driving [and] getting on and off the forklift were any greater than normal activities of daily living." In his written report, Dr. Levin stated that since claimant's condition does not appear to be a work-related injury, "there is no comment as to maximum medical improvement." ¶ 12 Dr. Levin reevaluated claimant on May 21, 2013. At that time, claimant complained of pain over the posterior aspect of the left arm with burning in the left elbow to his left wrist. Claimant had no neck pain, but felt some popping in the shoulder. Claimant also reported some numbness and tingling in the left thumb, index finger, and long finger. Dr. Levin's diagnosis was degenerative arthritic changes of the cervical spine with degenerative cervical spondylosis. Dr. Levin determined claimant was at maximum medical improvement. Dr. Levin placed claimant's impairment at three percent of a person as a whole. ¶ 13 Meanwhile, Dr. Gross sat for an evidence deposition on March 27, 2012. Dr. Gross testified that following an examination on October 5, 2011, he diagnosed claimant with work-related cervical radiculopathy and shoulder pain. Dr. Gross admitted that he did not make any recommendations as to whether claimant should be off work on account of the injury at the October 5 examination. At a follow-up visit on October 12, 2011, Dr. Gross ordered an MRI and issued "a letter for him missing work." When Dr. Gross next saw claimant on October 19, 2011, he observed that the MRI showed a herniated disc causing a pinched nerve on the left, which was consistent with claimant's symptoms. As a result, Dr. Gross referred claimant to a neurosurgeon and continued claimant off work. While awaiting approval for the neurosurgical consultation, claimant continued to see Dr. Gross about once a month. During this time, claimant reported pain in his neck and shoulder as well as pain and weakness of the left arm. Dr. Gross's diagnosis was cervical radiculopathy due to a herniated disc. He added that, by way of history, claimant's condition appeared to be work related and that claimant did not have any prior symptoms. At the time of his deposition testimony, Dr. Gross opined that claimant remained temporarily totally disabled from work. On cross-examination, Dr. Gross opined that claimant had been coached to tell him that he was overworked from climbing in and out of the forklift too many times. Dr. Gross also acknowledged that the history claimant gave to him conflicted with the history claimant provided emergency-room personnel on October 1, 2011, especially with respect to the extent of radiating symptoms. ¶ 14 At claimant's request, Dr. Patrick O'Leary examined claimant on August 28, 2014. Dr. O'Leary authored a report of his findings and testified by evidence deposition on October 16, 2014. Dr. O'Leary is a board-certified orthopedic spine surgeon, who performs between 250 and 300 spine surgeries each year. As part of his IME, Dr. O'Leary reviewed medical records from claimant's emergency-room visit and from Dr. Gross. He also reviewed an MRI film, the records from Dr. Levin, and the evidence depositions of both Dr. Gross and Dr. Levin. Claimant told Dr. O'Leary that late in September 2011, while working for respondent, he looked backwards while driving a forklift and felt a "pop" in his neck. This resulted in neck, shoulder, and left-arm pain. After conducting a physical examination of claimant and reviewing the MRI, Dr. O'Leary diagnosed spondylosis and stenosis at C5-C6 and a disc herniation at C6-C7. Dr. O'Leary opined that claimant sustained an aggravation of an underlying condition at C5-C6 as a result of the work accident. He further opined that the disc herniation at C6-C7 was caused by the work accident. In support of his opinions, Dr. O'Leary cited the twisting motion claimant referenced in his history and a lack of evidence that claimant had any significant prior neck or left-arm pain. Dr. O'Leary testified that, based on the history claimant provided, he was "not sure" that he would have released claimant to full duty at any point given his symptoms. Rather, Dr. O'Leary would have limited claimant to light duty with a 25-pound lifting restriction and no overhead activity. He added that claimant could operate machinery, but should avoid significant neck rotation or cervical extension. Dr. O'Leary did not believe that claimant was at maximum medical improvement, and he recommended a repeat MRI and a follow-up consultation to establish a treatment plan. ¶ 15 Dr. O'Leary was asked whether he agreed with Dr. Levin's opinion that normal daily activities could have caused claimant's injuries. He responded in the negative, explaining, claimant "gives a history of being on a forklift *** having his hands on the wheel, having it turned and essentially behind his body, which is a routine task of a forklift driver, to maintain safety, and he feels a pop and then develops neck and arm pain, and so in my opinion that's not just a regular day-in, day-out activity." ¶ 16 Various documents were admitted into evidence by the parties, including a job description for claimant's position, an investigation reported dated October 3, 2011, a first report of injury dated October 4, 2011, and a first report of injury dated November 23, 2011. Also admitted into evidence was a "General Leave of Absence Request Form" dated October 13, 2011, in which claimant requested a leave of absence from his employment with respondent for an unspecified "personal health condition." The requested leave time was from October 5, 2011, through "10/19/11 MAX." Claimant did not recall completing the form, but acknowledged that his signature appears on the document. On October 19, 2011, Dr. Gross completed a "Medical Leave of Absence Certification of Health Care Provider." On the form, Dr. Gross checked a box to indicate that claimant was not able to perform the functions of his position or work of any kind "due to pain [and] pain medication." Dr. Gross listed claimant's dates of incapacity as October 5, 2011, through "present." ¶ 17 At the arbitration hearing, claimant testified that he continues to experience pain in his neck and numbness in his thumb, pointer finger, and middle finger of his left hand. Claimant further testified that he would like to undergo the conservative treatment recommended by Dr. O'Leary. ¶ 18 On May 12, 2015, the arbitrator issued a decision finding that claimant sustained an injury arising out of and in the course of his employment with respondent and that his condition of ill-being was causally related to the injury. The arbitrator awarded claimant medical expenses and prospective medical treatment. In addition, the arbitrator, finding that the medical records established that claimant was off work completely from October 5, 2011, through April 14, 2015, awarded claimant 232-5/7 weeks of TTD benefits. The arbitrator granted respondent a credit for TTD paid from October 5, 2011, through November 1, 2011. Thereafter, respondent requested review of the arbitrator's decision before the Commission. ¶ 19 The Commission modified the period of TTD benefits, but otherwise affirmed and adopted the decision of the arbitrator. Specifically, the Commission determined that claimant was entitled to TTD benefits only from October 5, 2011, through October 19, 2011. In support of its finding, the Commission initially noted that claimant stopped working for respondent on October 4, 2011, before receiving medical authorization to do so. The Commission further observed that Dr. Gross's office note of October 5, 2011, does not show that he authorized claimant off work on that date. On October 12, 2011, Dr. Gross reported that respondent wanted claimant to return to light-duty work, but claimant insisted that he could not return to any type of work. At that time, Dr. Gross issued a slip authorizing claimant off work for one week, through October 19, 2011. The Commission acknowledged that Dr. Gross continued to treat claimant periodically and continued to find him unable to work, but found that Dr. Gross provided little related treatment to claimant after 2011. The Commission also cited Dr. O'Leary, who found it difficult to answer whether claimant could have worked without restrictions since his accident, but ultimately conceded that claimant could work light duty, lifting up to 25 pounds. The Commission observed that claimant's job description has a lifting requirement of up to 25 pounds and further provides that "[r]easonable accommodations may be made to enable individuals with disabilities to perform the essential functions." The Commission questioned the credibility of the opinions of Dr. Gross and Dr. O'Leary as to claimant's work status as those opinions were based upon "conflicting histories" and "inconsistent subjective complaints" provided by claimant. Based on this evidence, the Commission concluded that claimant could have worked after October 19, 2011, but chose not to. The Commission therefore reduced the award of TTD benefits from 232-5/7 weeks to 2-1/7 weeks. The Commission also remanded the matter for further proceedings pursuant to Thomas, 78 Ill. 2d 327. Subsequently, claimant sought judicial review. The circuit court of Tazewell County confirmed the decision of the Commission. This appeal ensued.
Claimant filed a notice of appeal in this court and respondent filed a notice of cross-appeal. Respondent subsequently moved to withdraw its cross-appeal. We granted respondent's motion on July 20, 2017. Accordingly, we proceed solely on the appeal filed by claimant. --------
¶ 20 III. ANALYSIS
¶ 21 At issue in this appeal is whether the Commission erred in reducing the arbitrator's award of TTD benefits. An employee is temporarily totally disabled from the time an injury incapacitates him until such time as he is as far recovered as the permanent character of the injury will permit. Archer Daniels Midland Co. v. Industrial Comm'n, 138 Ill. 2d 107, 118 (1990); Westin Hotel v. Industrial Comm'n, 372 Ill. App. 3d 527, 542 (2007). To be entitled to TTD benefits, the employee must establish not only that he did not work, but also that he is unable to work and the duration of that inability to work. Pietrzak v. Industrial Comm'n, 329 Ill. App. 3d 828, 832 (2002); see also Interstate Scaffolding, Inc. v. Illinois Workers' Compensation Comm'n, 236 Ill. 2d 132, 146 (2010) ("[W]hen determining whether an employee is entitled to TTD benefits, the test is whether the employee remains temporarily totally disabled as a result of a work-related injury and whether the employee is capable of returning to the work force."). Once an injured employee has reached MMI, the disabling condition has become permanent and he or she is no longer eligible for TTD benefits. Nascote Industries v. Industrial Comm'n, 353 Ill. App. 3d 1067, 1072 (2004). The factors to consider in determining whether an employee has reached MMI include a release to work, medical testimony or evidence concerning the employee's injury, and the extent of the injury. Land & Lakes Co. v. Industrial Comm'n, 359 Ill. App. 3d 582, 594 (2005). The issue of whether an employee is entitled to TTD benefits and the period of time during which the employee is temporarily totally disabled is a question of fact for the Commission, and the Commission's decision on such matters will not be set aside on review unless it is contrary to the manifest weight of the evidence. Archer Daniels Midland Co., 138 Ill. 2d at 118-19. A decision is against the manifest weight of the evidence only if an opposite conclusion is clearly apparent. Accolade v. Illinois Workers' Compensation Comm'n, 2013 IL App (3d) 120588WC, ¶ 17. ¶ 22 In this appeal, claimant challenges the Commission's decision to terminate his TTD benefits as of October 19, 2011. Citing the testimony and medical records of Dr. Gross and Dr. O'Leary, claimant contends that his condition had not stabilized by that date and, therefore, he was not at maximum medical improvement. Accordingly, claimant asserts that the Commission's reduction of TTD benefits from 232-5/7 weeks to only 2-1/7 weeks is against the manifest weight of the evidence. We disagree. ¶ 23 Here, the record shows that claimant stopped working for respondent as of October 4, 2011, prior to receiving medical authorization to do so. Since claimant did not work after October 4, 2011, the pertinent inquiry becomes whether claimant was capable of working after that date. On this issue, the Commission was presented with conflicting evidence. On October 12, 2011, about two weeks after the accident, claimant told Dr. Gross that respondent wanted him to return to work at light duty. However, claimant felt that he was unable to do any work. As a result, Dr. Gross authorized claimant off work through October 19, 2011. Thereafter, Dr. Gross continued to treat claimant conservatively and kept him off work. Although Dr. O'Leary was "not sure" that he would have released claimant to full duty at any point given claimant's symptoms, he testified that claimant was capable of working light duty with a 25-pound lifting restriction and no overhead activity. Dr. O'Leary also concluded that claimant could operate machinery, but should avoid significant neck rotation or cervical extension. We observe that the limitations Dr. O'Leary would have imposed fit within the physical requirements of claimant's position. Thus, it necessarily follows that a return to light-duty work would also fall within claimant's work restrictions. Specifically, claimant's regular job description provides, "While performing the duties of this job, the employee is frequently required to stand. The employee is regularly required to reach with hands and arms; talk or hear; lift up to 10 lbs. The employee is occasionally required to walk; lift up to 25 lbs." The job description further provides that "[r]easonable accommodations may be made to enable individuals with disabilities to perform the essential functions" of the position. ¶ 24 Based on the foregoing evidence, the Commission could reasonably conclude that claimant was offered light-duty work by respondent and that he was physically capable of working light-duty given the restrictions suggested by Dr. O'Leary, but that he chose not to attempt any light-duty work. Moreover, the Commission's finding that claimant could return to work as of October 19, 2011, is supported by Dr. Gross's initial slip authorizing claimant off work through that date, the "General Leave of Absence Form," in which claimant requested time off until "10/19/11 MAX," and Dr. Gross's "Medical Leave of Absence Certification of Health Care Provider," which is dated October 19, 2011, and specifies the dates of claimant's incapacity as October 5, 2011, to present. As such, we cannot say that a conclusion opposite that of the Commission is clearly apparent. ¶ 25 Claimant nevertheless observes that in modifying the award of TTD, the Commission questioned the credibility of Dr. Gross's and Dr. O'Leary's opinions that he was unable to work, citing "conflicting histories" and "inconsistent subjective complaints from claimant." Claimant protests that the Commission "did not state any histories or inconsistent subjective complaints in their decision." Again, we disagree. For instance, the Commission noted that although claimant testified that Dr. Gross authorized him off work continuously from October 5, 2011, through the date of the arbitration hearing, Dr. Gross recounted that he did not authorize claimant off work until October 12, 2011. The Commission also observed that Dr. Gross had concerns about claimant's credibility, noting that Dr. Gross believed that claimant had been coached to tell him that he was overworked from climbing in and out of the forklift too many times. Dr. Gross also admitted that the history claimant gave him conflicted with the history claimant provided emergency room personnel on October 1, 2011. ¶ 26 Citing Interstate Scaffolding, 236 Ill. 2d 132, claimant complains that the Commission failed to take into account the fact that respondent terminated his employment following the injury. In Interstate Scaffolding, the supreme court determined that an employer's obligation to pay TTD benefits to an injured employee does not cease just because the employee has been discharged, whether or not the discharge is for cause. Interstate Scaffolding, 236 Ill. 2d at 149. Claimant, however, does not direct us to any evidence to support a claim that his termination played a role in the Commission's decision to reduce his TTD benefits. To the contrary, as discussed above, the Commission's finding was premised on the fact that claimant failed to establish that he was unable to perform the functions of his position for respondent after October 19, 2011. Accordingly, claimant's reliance on Interstate Scaffolding is misplaced.
¶ 27 IV. CONCLUSION
¶ 28 After reviewing the record, we cannot say that the Commission's decision to modify the period of TTD benefits is against the manifest weight of the evidence. Accordingly, for the reasons set forth above, we affirm the judgment of the circuit court of Tazewell County, which confirmed the decision of the Commission. This matter is remanded to the Commission for further proceedings in accordance with Thomas, 78 Ill. 2d 327. ¶ 29 Affirmed and remanded.